Honaker v. Whitley

Sims, J., after making the foregoing statement, delivered the following opinion of the court. The pivotal question in this case is this: [1] Is there any evidence therein tending to show that it is more probable that the defendant rather than another dentist, Dr. Wood, fractured the jaw of the plaintiff? As appears from the above statement, the evidence does establish the fact that either the defendant or Dr. Wood caused such fracture; but is there any evidence going beyond that, tending to show that it was more probable that the defendant did it? Taking all that the plaintiff and his witnesses say of the conduct of the defendant to be true, it still amounts to no more than this, that the defendant may have caused the fracture. It does not controvert, negative or weaken in any degree the fact that it is equally, if not more, probable that what Dr. Wood did caused the fracture. The first positive evidence of the fracture is that supplied by the X-ray photograph, but that was not taken until a time after both the operation by Dr. Wood as well as that by the defendant had occurred, so that the X-ray photograph affords no evidence whatever on the question under consideration. The only occasion on which the defendant could have broken the jaw was when he attempted to pull the second [205] molar or second lower jaw tooth of the plaintiff next to the impacted wisdom tooth. The plaintiff’s own expert witness testifies, on that subject, as quoted in the above statement, in substance, that it was not more probable that such attempt to pull such tooth caused the fracture, than the pulling of any other tooth, except an impacted wisdom tooth. And the defendant did not pull or attempt to pull the impacted wisdom tooth. The only remaining evidence in the case bearing on the probability that the defendant caused the fracture, was as to the violence of his pulling and the symptons exhibited by the plaintiff following such pulling and prior to the operations by Dr. Wood. Plaintiff’s own expert witness, Dr. Walton, testified, in effect, as shown by the quotations from the testimony in the above statement, that none of these things furnished any evidence chat the defendant, rather than Dr. Wood, caused the fracture. The symptoms of a very severe pain in the temple was in truth the only distinctive or characteristic evidence in the case tending to support a diagnosis that the fracture occurred before the operation by Dr. Wood; but Dr. Walton, the plaintiff’s own expert witness testified, in substance, that this same symptom with equal probability, so far as it existed prior to Dr. Wood’s operations, may have been caused by a stretching of the ligaments causing inflammation around the condyle of the jaw, or by a fracture of the jaw. And a stretching of the ligaments causing inflammation around the condyle of the jaw, was, of course, but a natural and probable result of the violent pulling by the defendant in his attempts to extract the second molar aforesaid. Dr. Wood’s testimony above quoted, to say the most of it in favor of the plaintiff, leaves it equally probable that he fractured the jaw bone of the plaintiff as that the defendant did so. [206] There were two other dentists introduced as expert witnesses for the defendant and the defendant also testified in the case in his own behalf, in the testimony of none of whom is found any evidence on which the plaintiff could rely to supply a preponderance of evidence in his favor on the probability in question, and, therefore, none of such testimony has been referred to in' the statement above. [2] We must say of this case, therefore, what is said by this court in the case of C. & O. R. Co. v. Whitlow, 104 Va. 90, 94, 51 S. E. 182, 183: “The case here falls under that class sanctioning the rule as stated by all text writers, that where damages are claimed for injuries which may have resulted from one of two causes, for one of which the defendant is responsible, and for the other of which he is not responsible, the plaintiff must fail if his evidence does not show that the damages are produced by the former cause. And he must also fail if it is just as probable that the damages were caused by the one as by the other, since the plaintiff is hound to make out his case by a preponderance of evidence.” We are constrained, therefore, to set aside the verdict and judgment under review and grant the defendant a new trial. Reversed.